1. 17/11/2018

2. Environmental Law update Summer 2016
John Mitchell, partner, Regulatory Risk & Compliance

3. Brexit: basics
A “single market” is one in which goods are free to move across borders without inspection, restriction or tariff
The “Single Market” (more correctly the “Internal Market”) is the single market enjoyed by the 28 member states of the EU
The European Economic Area is the single market enjoyed by the EU and 3 of the 4 members of the European Free Trade Association
The EEA Agreement gives the 3 EFTA members access to the EU Internal Market/Single Market
The EEA Agreement excludes agriculture and fisheries
More correctly, the Single Market is called the Internal Market
EFTA comprises Norway, Iceland, Liechtenstein and Switzerland.
Switzerland is not part of the EEA
17/11/2018

4. Brexit: UK options for trade with the EU
Turn its back on the EU and operate under WTO rules
Negotiate bilateral deals with the EU in specific areas (in or out of EFTA)
Apply to join EFTA and sign up to the EEA Agreement
All options require:
Adoption of EU Single Market legislation; or
Adequate legislation that is the equivalent of EU Single Market legislation
Operating under WTO rules will be difficult:
Significant tariffs
No guarantee of right of entry of goods
Negotiating bilateral deals will take years:
There are around 100 Swiss/EU agreements
Negotiations take place product group by product group on the basis of the Combined Nomenclature, which has 99 broad sections and is nearly 1000 pages long
So joining EFTA and signing up to the EEA Agreement would seem the most attractive, apart from the slight difficulty that:
The EEA agreement obliges the free movement of labour
EFTA members pay a contribution to the EU budget.
The reason that all options require adoption of EU legislation or equivalent is that the EU is not going to allow the entry of goods with inferior standards to its own, due to considerations of:
A level playing field for products and services
Consumer safety
17/11/2018

5. Brexit: the EEA Agreement
The EEA Agreement covers the “Four Freedoms”:
Goods
Services
Persons
Capital
There are provisions controlling competition and state aid
There are “horizontal provisions” for:
Social policy
Consumer protection
Environment
Statistics
Company law
17/11/2018

6. Brexit: EEA on environment
The environmental provisions of the EEA agreement cover:
Water
Air
Chemicals
Waste
Noise
17/11/2018

7. Brexit: implications for EU legislation
There are two types of EU legislation:
Those which apply only to the EU member states
Those which have “EEA relevance” and which apply to all members of the European Economic Area
A law has “relevance” if it affects an area covered by the EEA Agreement
17/11/2018

8. Brexit: EU law only The following EU law does not have EEA relevance:
Bathing Water Directives
Habitats Directive
Wild birds Directive
Directive on trade in wild flora and fauna
The following EU law is outside the EEA altogether
Common Fisheries Policy
Common Agricultural Policy
17/11/2018

9. Brexit: EU law with EEA relevance
This is a selection of principal EU laws which do apply to EEA members:
Pesticides Regulation
Packaging Waste Regulation
REACH
Air Quality Directive
Water Framework Directive
Environmental Impact Directive
Renewable Energy Directive (and other directives from the Energy Policy Package )
That’s bad news for critics of EU environmental law who have frequently cited the impact of EU legislation on planning applications and the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation as posing the most challenging regulatory burdens for businesses.
And for Boris Johnson, who was dismissive of EA air quality legislation when he was mayor of London.
17/11/2018

10. Brexit: climate change law
Most UK pure climate change law is not EU law
UK made its climate change laws in response to commitments in international agreements
The commitments were made on its behalf by the EU
In some cases the UK’s enactments go beyond what was required
If they are scaled back or repealed, it will be as result of a change of government, not Brexit
In terms of a shake up of energy policy, the report by the CMA on the functioning of the energy market is likely to have more of an impact on individual businesses and consumers and on the make up energy supply than Brexit, with its assault on Ofgem’s Retail Market Reforms and DECC’s policies on the allocation of CfDs.
17/11/2018

11. Environmental Law update Summer 2016
John Mitchell, partner, Regulatory Risk & Compliance